End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

ABA Model Rules of Professional Conduct
(pre-2002)

[1] The normal client-lawyer
relationship is based on the assumption that the client, when properly advised
and assisted, is capable of making decisions about important matters. When
the client is a minor or suffers from a mental disorder or disability, however,
maintaining the ordinary client-lawyer relationship may not be possible in
all respects. In particular, an incapacitated person may have no power to
make legally binding decisions. Nevertheless, a client lacking legal competence
often has the ability to understand, deliberate upon, and reach conclusions
about matters affecting the client's own well-being. Furthermore, to an increasing
extent the law recognizes intermediate degrees of competence. For example,
children as young as five or six years of age, and certainly those of ten
or twelve, are regarded as having opinions that are entitled to weight in
legal proceedings concerning their custody. So also, it is recognized that
some persons of advanced age can be quite capable of handling routine financial
matters while needing special legal protection concerning major transactions.

[2] The fact that a client
suffers a disability does not diminish the lawyer's obligation to treat the
client with attention and respect. If the person has no guardian or legal
representative, the lawyer often must act as de facto guardian. Even if the
person does have a legal representative, the lawyer should as far as possible
accord the represented person the status of client, particularly in maintaining
communication.

[3] If a legal representative
has already been appointed for the client, the lawyer should ordinarily look
to the representative for decisions on behalf of the client. If a legal representative
has not been appointed, the lawyer should see to such an appointment where
it would serve the client's best interests. Thus, if a disabled client has
substantial property that should be
sold for the client's benefit, effective completion of the transaction ordinarily
requires appointment of a legal representative. In many circumstances, however,
appointment of a legal representative may be expensive or traumatic for the
client. Evaluation of these considerations is a matter of professional judgment
on the lawyer's part.

[4] If the lawyer represents
the guardian as distinct from the ward, and is aware that the guardian is
acting adversely to the ward's interest, the lawyer may have an obligation
to prevent or rectify the guardian's misconduct. See Rule
1.2(d).

Disclosure of the Client's Condition

[5] Rules of procedure in
litigation generally provide that minors or persons suffering mental disability
shall be represented by a guardian or next friend if they do not have a general
guardian. However, disclosure of the client's disability can adversely affect
the client's interests. For example, raising the question of disability could,
in some circumstances, lead to proceedings for involuntary commitment. The
lawyer's position in such cases is an unavoidably difficult one. The lawyer
may seek guidance from an appropriate diagnostician.

Emergency Legal Assistance

[6] In an emergency where
the health, safety or a financial interest of a person under a disability
is threatened with imminent and irreparable harm, a lawyer may take legal
action on behalf of such a person even though the person is unable to establish
a client-lawyer relationship or to make or express considered judgments about
the matter, when the disabled person or another acting in good faith on that
person's behalf has consulted the lawyer. Even in such an emergency, however,
the lawyer should not act unless the lawyer reasonably believes that the person
has no other lawyer, agent or other representative available. The lawyer should
take legal action on behalf of the disabled person only to the extent reasonably
necessary to maintain the status quo or otherwise avoid imminent and irreparable
harm. A lawyer who undertakes to represent a person in such an exigent situation
has the same duties under these Rules as the lawyer would with respect to
a client.

[7] A lawyer who acts on
behalf of a disabled person in an emergency should keep the confidences of
the disabled person as if dealing with a client, disclosing them only to the
extent necessary to accomplish the intended protective action. The lawyer
should disclose to any tribunal involved and to any other counsel involved
the nature of his or her relationship with the disabled person. The lawyer
should take steps to regularize the relationship or implement other protective
solutions as soon as possible. Normally, a lawyer would not seek compensation
for such emergency actions taken on behalf of a disabled person.

Model Code Comparison

There was no counterpart to this Rule in the Disciplinary
Rules of the Model Code. EC 7-11 stated that the "responsibilities of a lawyer
may vary according to the intelligence, experience, mental condition or age
of a client . . . . Examples include the representation of an illiterate or
an incompetent." EC 7-12 stated that "[a]ny mental or physical condition of
a client that renders him incapable of making a considered judgment on his
own behalf casts additional responsibilities upon his lawyer. Where an incompetent
is acting through a guardian or other legal representative, a lawyer must
look to such representative for those decisions which are normally the prerogative
of the client to make. If a client under disability has no legal representative,
his lawyer may be compelled in court proceedings to make decisions on behalf
of the client. If the client is capable of understanding the matter in question
or of contributing to the advancement of his interests, regardless of whether
he is legally disqualified from performing certain acts, the lawyer should
obtain from him all possible aid. If the disability of a client and the lack
of a legal representative compel the lawyer to make decisions for his client,
the lawyer should consider all circumstances then prevailing and act with
care to safeguard and advance the interests of his client. But obviously a
lawyer cannot perform any act or make any decision which the law requires
his client to perform or make, either acting for himself if competent, or
by a duly constituted representative if legally incompetent."